STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
In Re MICHAEL E. LANGTON, )
)
Respondent, ) CASE NO. 91-3367EC
) COMPLAINT NO. 90-86
)
RECOMMENDED ORDER
Pursuant to written notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 30, and October 1, 1991, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Virlindia Doss
Craig B. Willis
Assistant Attorneys General Department of Legal Affairs The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
For Respondent: Mark Herron, Esquire
Jeffrey H. Barker, Esquire
Akerman, Senterfitt, Eidson & Moffit
216 South Monroe Street, Suite 300 Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether the Respondent, Michael E. Langton, violated Sections 112.313(6) and 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, Constitution of the State of Florida, by his activities and contacts with staff of the Department of Community Affairs on matters dealing with the Community Development Block Grant Program?
PRELIMINARY STATEMENT
On or about May 16, 1990, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission") against the Respondent, Michael E. Langton. Based upon a review of the Complaint against the Respondent, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on August 6, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether the Respondent violated Sections 112.313(6) and 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida.
Following the Commission's investigation of the allegations against the Respondent, a Report of Investigation was released on January 23, 1991. Based upon the Complaint and the Report of Investigation an Advocate for the Commission issued an Advocate's Recommendation on February 8, 1991. The
Advocate who issued the Advocate's Recommendation determined that there was probable cause to believe that the Respondent had violated Sections 112.313(6) and 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida.
Based upon the Report of Investigation and the Advocate's Recommendation, the Commission issued an Order Finding Probable Cause on April 24, 1991. The Commission ordered that a public hearing be conducted.
By letter dated May 23, 1991, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rules 34-5.010 and 34-5.014, Florida Administrative Code, requested that the public hearing on the Complaint against the Respondent be conducted by the Division of Administrative Hearings.
Prior to the formal hearing the parties filed separate pre-hearing statements. The Advocate indicated that the "admitted facts" contained in the Respondent's Prehearing Filing were acceptable. Those facts have, therefore, been accepted in this Recommended Order.
At the formal hearing the Advocate presented the testimony of Linda Frohock, Lewis Otto Burnside, Terri Ganson and Thomas Pelham. The Advocate also offered twenty exhibits for identification purposes. All of those exhibits, except Advocate's exhibit 19, were accepted into evidence. Advocate's exhibit
19 was not offered. Two of the exhibits consisted of the deposition testimony of Wanda Jones and the Respondent.
Advocate's exhibits 18A and 18B are hearsay not subject to any exception to the hearsay rule. No findings of fact have been made based upon these exhibits. Advocate's exhibit 8 contains some hearsay and that hearsay evidence has not been relied on in making findings of fact. Finally, the Respondent has continued to object to Advocate's exhibit 1, a sworn statement of the Respondent given before a state attorney. Although hearsay, Advocate's exhibit 1 is admissible as an exception to the hearsay rule: it constitutes an admission of a party, the Respondent. See Section 90.803(18), Florida Statutes.
The Respondent presented the testimony of Representative Charles Fred Jones, Mario Lancet Taylor, Nancy H. Bartek and Michael Richardson. The Respondent also offered fourteen exhibits for identification purposes.
Respondent's exhibits 1-6 and 8 were offered and accepted into evidence. Respondent's exhibits 7 and 9-13 were not offered into evidence. Respondent's exhibit 14 was offered only for impeachment purposes. The deposition testimony of Earl H. Parmer, Jr., was taken and filed, with agreement of the parties, after the formal hearing of this matter. That deposition testimony is accepted into evidence.
The parties have filed proposed recommended orders which contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
The Respondent.
The Respondent, Michael E. Langton, took office as a member of the Florida House of Representatives, on October 22, 1985.
The Respondent has continuously served as a Florida state representative since October 22, 1985.
At all times relevant to this proceeding, the Respondent served as a public officer subject to Sections 112.313(6) and 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida.
Since October, 1981, the Respondent has been a grants consultant. The Respondent formed, owned and was employed by Langton Associates, Incorporated.
Upon taking office as a Florida state representative in 1985, the Respondent requested an opinion of the Commission concerning his continued work for Langton Associates, Incorporated. The opinion of the Commission indicated that the Respondent could continue to work as a grants consultant but that he should not personally appear before state agencies.
Langton Associates, Incorporated.
The Respondent has been the sole stockholder of Langton Associates, Incorporated (hereinafter referred to as "Langton Associates"), since it was formed in October, 1981. The corporation is a for-profit-corporation.
Among its functions, Langton Associates provides consulting services to governments eligible to apply for grants under the Community Development Block Grant Program and assists governments in preparing and submitting applications for grants under the program.
During the period of time at issue in this proceeding, the Respondent was paid a salary from Langton Associates for his services to, and on behalf of, the corporation. The salary paid to the Respondent has been determined by the Respondent. Although the salary varies from year-to-year, it averages approximately $50,000.00 a year, including 1988, 1989 and 1990.
The City of Macclenny, Florida, was among the clients of Langton Associates. Macclenny paid Langton Associates $12,000.00 a year for five to six years, including 1988.
Income paid to Langton Associates by its clients was deposited in a business account from which the Respondent's salary was paid.
During the five to six years prior to July, 1990, Langton Associates made approximately $350,000.00 for services to its clients.
During the period of time at issue in this proceeding, the Respondent, through Langton Associates, provided services to a number of local governments. Several of these local governments paid Langton Associates an annual fee. The average fee was approximately $30,000.00 a year. Other clients of Langton Associates paid on a per grant application basis approximately $3,000.00 per grant application.
The Community Development Block Grant Program.
The Community Development Block Grant Program (hereinafter referred to as the "CDBGP"), is a Federal government program whereby funds are provided to States to use to improve small local communities.
Funds received for the CDBGP in Florida are administered by the Florida Department of Community Affairs (hereinafter referred to as the "Department"), through the Department's Division of Housing and Community Development.
Funds for the CDBGP are received and are distributed for four categories of grant projects: (1) housing; (2) neighborhood revitalization; (3) economic development; and (4) commercial revitalization.
CDBGP funds are intended to be used in part to assist small local governments to revitalize homes and neighborhoods.
Each year the Department adopts administrative rules governing the CDBGP and the manner in which annual funds are to be distributed in Florida.
The Department's revised administrative rules provide the steps to be followed in each annual funding cycle. The procedures for determining which small governments receive CDBGP funds generally include the following steps:
An applicant workshop is held at the beginning or the middle of the funding cycle;
An opening date is established for when Applications are to be submitted;
A closing date is established for when Applications are scored and awards of funds are made;
Applications are initially ranked according to their scores;
Site visits are conducted by the Department;
Applications are ranked again. These rankings can be challenged; and
Funds are awarded.
The Secretary of the Department makes the final decision as to how CDBGP funds are awarded.
All applications for CDBGP funds are "self-scored" prior to filing. Each applicant determines, based upon objective standards, the score of its application and informs the Department of the score on the application.
When applications are filed they are initially ranked by the Department based upon the self-score determined by the applicant.
Applications may be filed on behalf of small cities of less than 50,000 population or small counties of less than 200,000 population.
Applications for CDBGP funds are technically filed by eligible applicants--a county or city. Private individuals and businesses are not eligible to apply for grants from the Department under the CDBGP.
Applications are prepared 90 to 95% of the time by consultants, including Langton and Associates. The following question is included on applications from which it may be determined if an application was prepared by a
consultant: "Who was the agency or firm responsible for preparing the application?"
The eligible county or city for which an application is submitted is considered the "applicant." If a consultant prepared and filed an application on behalf of an applicant, however, it was common for Department staff associated with the CDBGP to refer to the consultant and/or the government entity as the "applicant."
Although the number of consultants in Florida who prepared applications for CDBGP awards varied from year to year, there have been approximately six to ten consultants in Florida preparing applications for CDBGP awards.
During 1988, there were a total of approximately 276 local governments which were eligible for awards under the CDBGP. Only a small number of these entities, however, actually filed applications for awards.
The Department does not consider the identity of any consultant involved in filing a CDBGP application in determining which applicants should be awarded CDBGP grants.
Following the filing of applications for CDBGP grants, additional information is not to be provided to the Department unless requested. Nor are arguments to be presented to the Department in support of any application.
Target Area Maps and Gerrymandering.
Applications filed during the 1988 (as well as prior years) annual funding cycle for CDBGP funds for the housing category were required to include a "target area map".
A "target area map" was an area map of the local community of the applicant depicting the specific area that the proposed grant activities were to be conducted in. Therefore, a target area map for a housing grant would identify on the area map the specific houses for which the funds were being requested.
Prior to the 1988 annual funding cycle many target area maps had been submitted which included oddly shaped target areas. These oddly shaped target areas were not square or rectangular; instead, the target area was drawn in such a way that houses that qualified for CDBGP funds were included and those that did not qualify, even if located right next door to a qualified house on the same block, were excluded. "[A]pplicants would draw their target area boundaries in such a way to exclude housing units that would adversely affect their score." Lines 24-25, page 73, and line 1, page 74, Transcript of September 30, 1991-October 1, 1991, Formal Hearing (hereinafter referred to as the "Transcript"). This practice was referred to as "gerrymandering."
There had been concern and debate in and outside the Department concerning whether gerrymandering should be allowed. There were some who were not concerned about, or bothered by, gerrymandering because the use of gerrymandering to identify a target area did not cause persons who were not in need to be directly benefited from CDBGP funds. For example, in the housing grant area, only the houses of persons with low enough income levels could directly benefit from the CDBGP. Those that did not qualify for assistance could not be directly benefited even if an impacted area was gerrymandered.
There were others, however, who were concerned about and bothered by gerrymandering because the use of gerrymandering allowed applicants to achieve higher scores for their applications by drawing the targeted area in such a way to insure that it included mainly or totally houses that were qualified for funding while excluding unqualified houses in the same neighborhood which would reduce their scores.
Persons concerned with, and bothered by, gerrymandering, including the Respondent, believed that the CDBGP intended that only relatively box-shaped geographic neighborhoods should be allowed as the target area.
At various times, the Department tried to devise a method of preventing gerrymandering, but could find no reasonable solution. The difficulty with preventing gerrymandering was explained by Lewis O. Burnside, the Director (beginning in January, 1989) of the Department's Division of Housing and Community Development:
Every time I talked about target areas when we looked at it -- we tried to deal with
target areas to see what shape should they be. Should they be square or circular and should they -- we couldn't find any rhyme or reason for that. Also, our program applies to urban and rural areas. And in rural areas it is quite normal to have a large property value farm across from what used to be tenant
lands, where you have very low income people directly across the street from a
multi-million-dollar piece of farmland. And so, we could not write anything, one that would give you a non-gerrymandered target area unless it was just arbitrary. We would just have to say it has got to be square, or it has got to be rectangular, and it can be no larger than a certain size. . . .
Lines 8-20, page 141, Transcript.
Most people associated with the CDBGP, other than the Respondent, did not consider the issue of gerrymandering to be a burning issue or a particularly improper practice. This lack of concern was caused by the fact that the general purpose of the CDBGP was to benefit low and moderate income people and gerrymandering did not circumvent this general purpose. Ultimately, individuals in the houses included in a target area, even in a gerrymandered target area, benefited only if they were in need of assistance as established under the CDBGP.
There were members of the Florida Legislature, including the Respondent, who believed that gerrymandering in the CDBGP was inconsistent with the goals of the CDBGP.
Through at least the 1988 annual funding cycle, gerrymandering of target area maps was not prohibited by federal or Florida law.
The 1988 Funding Cycle.
The general procedures for determining how CDBGP funds were to be awarded each funding cycle which are described in finding of fact 18, supra, were followed for the 1988 funding cycle.
Legislation concerning the CDBGP was adopted during the 1988 legislative session and was codified as Chapter 88-201, Laws of Florida.
As a result of the adoption of Chapter 88-201, Laws of Florida, and as was the practice of the Department prior to each funding cycle, the Department undertook to amend its administrative rules governing the CDBGP, Chapter 9B-43, Florida Administrative Code.
Rule 9B-43.003(33), Florida Administrative Code, was renumbered as subparagraph (35) and was amended by the Department by adding the following underlined language:
"Target area" means a distinct, locally designated slum or blighted area under Section 163.340, F.S.; or a designated Enterprise Zone under Section 290.065, F.S.; or a distinct locally designated area, totally contained and contiguous in nature, that is characterized
by concentrations of low and moderate income persons, wherein low and moderate income persons comprise at least 51 percent or more of the target area population.
It was believed in the Department when the Department amended the definition of "target area" in its Rules that gerrymandering had been eliminated or substantially reduced.
Although no formal opinion was given, an attorney on the Department's legal staff indicated during a CDBGP application workshop conducted by the Department for the 1988 funding cycle that gerrymandering would no longer be allowed.
A representative of the Department instructed potential CDBGP grant applicants during a CDBGP application workshop held sometime after October 11, 1988, the effective date of Rule 9B-43.003(35), Florida Administrative Code, that gerrymandered target area maps would not be permitted. The Respondent and Langton Associates were aware of this representation.
At some time subsequent to the workshop at which it was announced that gerrymandering would not be allowed, applications for CDBGP housing grants for the 1988 funding cycle were submitted to the Department.
There were a total of thirty-four applications received for CDBGP housing grants for the 1988 funding cycle.
Langton Associates submitted applications for housing grants for the 1988 funding cycle for three applicants: (1) Macclenny; (2) Fellsmere, Florida; and (3) St. Johns County, Florida.
The target areas proposed with the applications prepared and submitted by Langton Associates for Macclenny, Fellsmere and St. Johns County were not
gerrymandered. Langton Associates did not submit gerrymandered target areas because the Respondent did not believe that gerrymandering was proper and because the Department had announced that it would not accept gerrymandered maps.
Despite the Department employee's statement during the workshop that gerrymandered maps would not be allowed for the 1988 funding cycle, most of the target area maps submitted with applications for the 1988 funding cycle were gerrymandered. Only five applications received by the Department did not include gerrymandered target areas: (1) the three applications submitted by Langton Associates; (2) the application of Apalachicola, Florida; and (3) the application of Century, Florida.
On December 1, 1988, a memorandum was sent from Earl H. Parmer, Jr., then Director of the Department's Division of Housing and Community Development, to the Department's General Counsel. Mr. Parmer informed the General Counsel of the target area maps which had been filed for the 1988 funding cycle and stated, in part, the following:
As you know, the department has been attempting to reduce the grantsmanship in the CDBG program by substantially reducing the gerrymandering of CDBG target areas; however, we question whether our current rule language supports our position.
Advocate's Exhibit 7.
On December 2, 1988, the following response was given by the Department's legal staff to Mr. Parmer: "Maps appear to be in compliance with Rule." Advocate's Exhibit 7. The Department, therefore, determined that it could not, despite the previous instructions from a Department representative that gerrymandered target areas would not be accepted, prevent the use of gerrymandered target area maps for the 1988 funding cycle.
On December 14, 1988, the applications for CDBGP housing grants were initially ranked by the Department based upon the scores determined by the applicants through self-scoring and reported to the Department. Applications were listed by highest score to lowest score. The total 1988 funding cycle housing grant funds available were sufficient to meet the requests for funds of only the top fifteen-ranked applications. There were not sufficient funds to fund those applicants who ranked below fifteenth.
The applications filed by Langton Associates ranked as follows, based upon their self determined scores, on the initial ranking: (1) Macclenny was seventeenth; (2) St. Johns was thirtieth; and (3) Fellsmere was thirty-second. The scores for these applicants determined through self-scoring were not high enough to entitle any of the applicants to an award of a housing grant for the 1988 funding cycle.
The Respondent's Contacts with Linda Frohock.
During December, 1988, the Respondent was informed that most applications for CDBGP housing grants for the 1988 funding cycle included gerrymandered target area maps and that the Department intended to accept those maps.
After learning of the Department's acceptance of gerrymandered target area maps, the Respondent telephoned Thomas Yeatman, an employee of the Department. The Respondent left a message requesting that his telephone call be returned.
Between December 20 and 31, 1988, Linda Frohock, then Chief of the Bureau of Housing and Community Assistance, in the Department's Division of Housing and Community Development, returned the telephone call the Respondent had made to Mr. Yeatman. This telephone call probably took place on or about December 20, 1988.
The Respondent's initial telephone call to Mr. Yeatman and his conversation with Ms. Frohock were the result of his frustration over the fact that the Department was going to allow gerrymandering of target areas. The Respondent had expressed concern over the Department's administration of the CDBGP prior to 1988. The Respondent described his frustration:
I called Mr. [Yeatman] and Linda, and I wanted to speak to the secretary as Representative Langton. I made it very clear, I said, I don't care what this is going to cost me politically or financially; you guys have got to stop this craziness. You are disadvantaging tons of cities, cities that are doing this right, they are doing this fair.
They have no shot at ever competing for these grants, if you are going to continue this abuse of a program.
. . . .
Lines 16-24, Page 35, September 12, 1991, Deposition of the Respondent.
The Respondent admitted that when he called the Department he intended to put pressure on the Department through his position as a legislator and that he attempted to use his power as a public official to force the Department to take action. The Respondent let it be known to Ms. Frohock that he was calling in his capacity as a legislator.
Ms. Frohock informed the Respondent that she was returning his telephone call at the direction of the Assistant Secretary of the Department and that she would report their conversation back to the Secretary and the Assistant Secretary of the Department.
During Ms. Frohock's telephone conversation with the Respondent, she took notes of the nature of the conversation.
During the telephone conversation with Ms. Frohock, the Respondent was very upset and angry. The Respondent was excited, and he talked loudly and rapidly.
The Respondent was angry that his competitors were benefiting by being allowed to submit gerrymandered target area maps while the applications prepared for, and submitted on behalf of, Langton Associates' clients had not included gerrymandered target area maps. The Respondent believed that Langton Associates had lost money in the past because it had not gerrymandered target areas while the Respondent's competitor's had.
During the Respondent's conversation with Ms. Frohock, the Respondent indicated the following:
He had met with Mr. Parmer in the summer of 1988 and discussed gerrymandering. Mr. Parmer had promised him that gerrymandering would not be allowed.
A Department employee had stated at a workshop that gerrymandering would not be allowed for the 1988 funding cycle.
He wanted to be allowed to gerrymander the target area maps Langton Associates had submitted on behalf of its clients or he wanted the Department to require that those applicants that had gerrymandered their target area maps be punished.
He indicated that he did not care what it cost him politically or financially to fight the Department's actions. He intended to shut down the CDBGP and see that all of the employees involved in the CDBGP were fired if the matter was not resolved to his satisfaction; "Heads would roll."
He indicated that Florida Senator Carrie Meek and Florida Representative C. Fred Jones had asked him to play a major role in the Legislature in revising the CDBGP.
He stated that the matter would end up in a court of law. He would get Fred Baggett and Jack Skelding, both of whom are attorneys, to assist him to fight the Department. He indicated that he would stop the 1988 funding cycle by suing the Department.
He stated that he would probably only get two grants funded during the 1988 funding cycle.
He stated that he would return to his office on January 2, 1989, and would have a legislative committee meeting on January 9, 1989; if he had not heard back from the Department about the problem, he wanted to talk to the Secretary of the Department after his return.
If he was not satisfied after talking to the Secretary of the Department, he indicated he intended to speak to the then Lieutenant Governor and the Speaker of the House Designate.
The Respondent asked Ms. Frohock to pass his concerns on to the Department's Secretary.
The Respondent requested that Ms. Frohock provide him with copies of all target area maps submitted in the housing category and the neighborhood revitalization category for the 1988 funding cycle. These documents were public records.
The Respondent's conversation with Ms. Frohock made her nervous, in part because he was a legislator.
During the Respondent's conversation with Ms. Frohock, he did not specifically say that he was calling on behalf of himself, Langton Associates or any local government for which the Respondent or Langton Associates was working. Nor did the Respondent specifically mention being compensated for the call.
Despite the foregoing finding of fact, it is obvious that the Department's actions which the Respondent complained of during his conversation with Ms. Frohock had directly affected applicants which had paid Langton Associates to prepare and file applications on their behalf during the 1988 funding cycle. It is also obvious that the alternative resolutions of the problem suggested by the Respondent had the potential to benefit those same applicants. In light of the fact that the Langton Associates' three applications were among only five applications out of thirty-four applications filed that were not gerrymandered, it was in the interest of Langton Associates and the Respondent that the Department take the actions the Respondent suggested or some other action to correct the Department's decision to accept gerrymandered target areas.
It is also true that the Respondent did not specifically request any change in the scores of the applicants represented by Langton Associates; and that the specific actions recommended by the Respondent were suggested for the "entire set of eligible applicants." But the Respondent's suggestions included the applicants represented by Langton Associates and those applicants stood to gain more from the Respondent's suggestions than those applicants that had filed gerrymandered target area maps; especially if the applicants that had filed gerrymandered target area maps were penalized as suggested by the Respondent.
While it is true that the concerns which the Respondent expressed to Ms. Frohock were to some degree concerns which the Respondent or any other legislator could have raised in their capacity as a legislator, the Respondent's actions also could have beneficially impacted clients of Langton Associates that had paid Langton Associates to prepare and file applications on their behalf in the funding cycle at issue. The fact that issues may have been raised by the Respondent in his capacity as a legislator does not negate the fact that the raising of those issues before the Department could also have benefitted the clients of his company, Langton Associates.
The Respondent's actions in telephoning Mr. Parmer and talking to Ms. Frohock were also considered necessary by the Respondent because of the possible harm to the reputation of Langton Associates caused by the Department's actions. Langton Associates was one of the only consultants that heeded the Department's instructions concerning the use of gerrymandered target areas for the CDBGP 1988 funding cycle. When the Department reversed its position and accepted the gerrymandered target areas proposed by most of the applicants in the 1988 funding cycle for housing, the Respondent had to be concerned about those who would question why Langton Associates had not filed gerrymandered maps. In light of these concerns, the Respondent had to have felt compelled to take some action to force the Department to admit that it had been in error and not Langton Associates, even if the clients of Langton Associates were not directly benefited.
Finally, some of the comments and requests made by the Respondent to Ms. Frohock may have been reasonable in light of the events which precipitated the conversation. If the Respondent had not been a member of the legislature who was prohibited from representing others for compensation before a state agency, some of his actions were actions which might be expected of, and considered reasonable if taken by, any consultant in light of some of the Department's actions. Some of the Respondent's actions were taken and some of his comments were made because he believed that the Department's actions had improperly misled Langton Associates. Some of his actions were taken and some of his comments were made, however, solely because of his position and power as a legislator.
Following her telephone conversation with the Respondent, Ms. Frohock gave a copy of her notes to, and briefed, the Department's Assistant Secretary. She also gave a copy of her notes to Mr. Burnside.
Ms. Frohock also subsequently wrote a memorandum memorializing her telephone conversation with the Respondent.
The January 10, 1989, Meeting.
Subsequent to the Respondent's telephone conversation with Ms. Frohock, the Respondent requested that a meeting be held with the Secretary of the Department in Representative C. Fred Jones' office.
In January, 1989, Representative Jones was the Chairman of the House Committee on Community Affairs, the committee of the House of Representatives with jurisdiction over the Department's programs.
The Respondent asked Mario Taylor, Staff Director of the House Committee on Community Affairs, to arrange the meeting with the Secretary of the Department.
Mr. Taylor obtained approval for the meeting requested by the Respondent from Representative Jones, and Mr. Taylor informed Michael Richardson, the Department's legislative liaison, of the meeting.
The meeting requested by the Respondent was scheduled for January 10, 1989 (hereinafter referred to as the "Meeting").
Mr. Richardson informed the then Secretary of the Department, Thomas Pelham, of the Meeting. Mr. Richardson told Mr. Pelham that the meeting was being held to discuss target area maps and gerrymandering. Mr. Pelham met with Mr. Burnside prior to the meeting to be briefed on the issue and requested that Mr. Burnside attend the Meeting with him.
Prior to the Meeting, Ms. Frohock and Mr. Burnside met with Department staff to discuss the gerrymandering issues raised by the Respondent during his telephone conversation with Ms. Frohock. A "discussion paper" was drafted by Ms. Frohock as a result of this Department staff meeting and was dated January 10, 1989.
It was agreed by Department staff that the Department had presented faulty instructions concerning gerrymandering during the workshop which took place before applications for the 1988 funding cycle were filed. There were some in the Department that wanted to take this incident into account in any recommended solution to the problem. There were others, including the Department's legal staff, who believed that the Department had done nothing illegal and, therefore, wanted to take no action.
The following possible solutions to the gerrymandering issue were discussed and agreed upon by the Department's staff and were discussed in the discussion paper:
Allow all applicants to resubmit target area maps (this would benefit the five applicants, including the three Langton Associates' applicants, that had submitted maps that had not been gerrymandered);
Give the maximum score for the target area for all the proposals (this would also benefit the five applicants, including the three Langton Associates' applicants, that had submitted maps that were not gerrymandered); and
Do nothing and allow any disappointed applicant to follow the Chapter 120, Florida Statutes, process to challenge the Department's actions. This is the option that was ultimately recommended in the discussion paper.
The Meeting was attended by Representative Jones, the Respondent, Mr. Pelham, Mr. Burnside, Mr. Taylor and Mr. Richardson. The Meeting was held in Representative Jones' office.
Representative Jones agreed to the meeting because he had a number of concerns about the manner in which the Department was administering the CDBGP. Representative Jones was not aware that the Respondent's company, Langton Associates, had filed applications on behalf of its clients which had been affected adversely by the Department's actions in accepting gerrymandered maps. Therefore, Representative Jones was not aware that the Respondent had not requested the Meeting solely in his legislative capacity.
During the Meeting the Respondent was hostile, agitated, upset and "seemed about to explode". His manner was threatening. Mr. Pelham described the Respondent's actions as a "tirade".
The Respondent did most of the talking during the Meeting:
He expressed his displeasure with the Department's administration of the CDBGP and, in particular, the Department's actions in accepting the gerrymandered target area maps. Representative Jones also expressed concern about the Department's administration of the CDBGP.
He indicated that he and others, in preparing applications on behalf of local governments for the 1988 funding cycle, had been misled by information presented at a workshop to the effect that gerrymandering would not be allowed for the 1988 funding cycle. The Respondent stated that "he and others had relied upon that misinformation, and now he feared that they were going to be penalized in the way those applications were scored." Lines 4-6, page 194, Transcript.
He stated that he did not believe the Department was administering or interpreting the law correctly, especially with regard to gerrymandering. He stated that the law did not allow gerrymandering.
He indicated his displeasure with staff of the Department and indicated that they should all, with one exception, be fired.
He demanded that all applications be thrown out; that they should not be scored or acted upon. He suggested that the Department should do nothing until the Legislature could take a look at the problem.
He threatened to take legal action to stop the Department if it did not stop the funding cycle.
Later during the Meeting, he suggested that the Department accept redrawn target area maps that were not gerrymandered or at least require all the applicants to "play by the same set of rules."
The Respondent wanted the Department to halt the 1988 funding cycle process so that legislation prohibiting gerrymandering could be adopted.
As of the date of the Meeting, if the Department had halted the 1988 funding cycle process it would not have harmed the applicants represented by Langton Associates. All three applicants had scores at that time which were below the funding ranking cut off score. Without some action by the Department, those applicants did not appear destined to receive a grant for the 1988 funding cycle.
While it is true that the suggestions made by the Respondent during the Meeting would apply in general to all applicants, it is also true that if all applicants were required to submit maps that were not gerrymandered, the applicants that had submitted gerrymandered maps would in all probability end up with reduced scores, depending on how their target areas were drawn. The applicants for which applications had been prepared by Langton Associates and two other applicants, on the other hand, would not suffer such a reduction in scores because they had already submitted target areas which were not gerrymandered. Those applicants which had the top fourteen scores for the 1988 funding cycle for housing at the time of the Meeting would have suffered disproportionately if the funding cycle were suspended: their status would have changed from prospective award winner to non-award winner.
During the Meeting, although the Respondent did not specifically indicate that the Meeting had been called, or that he was voicing his displeasure, on behalf of himself, Langton Associates or its clients, the Respondent made reference to the fact that he was a consultant and that Langton Associates had prepared applications for local governments that had been filed in the 1988 funding cycle being discussed. This was apparent to the Department employees present at the Meeting. The Respondent, although expressing his concerns in terms of all applicants generally, was nonetheless also concerned about the impact on the Langton Associates' applicants and Langton Associates. The Department employees present at the Meeting were aware of this fact also. The Respondent indicated that unless the Department took the actions he had suggested, Langton Associates and the two other applicants that had not gerrymandered their target areas would be prejudiced.
The Respondent, through Langton Associates, could have benefited if any of its 1988 funding cycle grants were approved for funding. For example, applicants which are approved will more often than not hire the consultant that prepared a successful application to administer the awarded funds. Fees for such services can be more profitable than the fees for preparing an application. Therefore, if the Respondent's actions during the Meeting could ultimately result in the awarding of a grant to one of the Langton Associates' clients, the Respondent would have benefited. The Respondent's actions in calling and participating in the Meeting were also considered necessary by the Respondent for the same reasons described in finding of fact 71, supra.
As was true of the Respondent's conversation with Ms. Frohock, it is true that the concerns which the Respondent expressed during the Meeting were to some degree concerns which the Respondent or any other legislator could have raised in their capacity as a legislator. It is also true that the Respondent's actions also could have beneficially impacted clients of Langton Associates that had paid Langton Associates to prepare and file applications on their behalf in the funding cycle at issue. The fact that issues may have been raised by the Respondent in his capacity as a legislator does not negate the fact that the
raising of those issues before Department employees could also have benefited the clients of his company, Langton Associates.
It is also true that some of the comments and requests made by the Respondent during the Meeting may have been reasonable in light of the events which precipitated the conversation. If the Respondent had not been a member of the legislature who was prohibited from representing others for compensation before a state agency, some of his actions during the Meeting were actions which might be expected of, and considered reasonable if taken by, any consultant in light of some of the Department's actions. Some of the Respondent's actions were taken and some of his comments were made because he believed that the Department's actions had improperly misled Langton Associates. Some of his actions were taken and some of his comments were made, however, solely because of his position and power as a legislator.
The 1988 Funding Cycle Awards in the Housing Category.
Following the Meeting, Mr. Burnside met with Ms. Frohock and discussed the meeting. Following this discussion, Ms. Frohock, at Mr. Burnside's direction, prepared a revised discussion paper in the form of a memorandum from Mr. Burnside to Mr. Pelham.
In the memorandum from Mr. Burnside to Mr. Pelham a fourth option was added: to cancel the funding cycle and start over.
Mr. Burnside ultimately decided, after discussion with Ms. Frohock, to recommend that the Department adopt the option included in the original discussion paper described in finding of fact 83b: give the maximum score for the target area for all the proposals. This option was recommended, in part, because Mr. Burnside and Ms. Frohock had determined that awarding all applicants maximum scores for their target areas would not have any real impact on which applicants were ultimately awarded funds for the 1988 funding cycle for the housing category and the option recognized that the Department had made a mistake at the workshop. The option recommended was also chosen, in part, because the Department had taken a similar action in the past and because the Respondent was a legislator.
Mr. Pelham ultimately approved Mr. Burnside's recommendation.
The decision of the Department as to how to resolve the issues raised by the Respondent concerning the gerrymandered maps received during the 1988 funding cycle for housing was the direct result of the actions of the Respondent described, supra.
After approval by Mr. Pelham of the recommended action, Mr. Burnside telephoned the Respondent to inform him of the Department's decision. This conversation took place sometime in February, 1989.
After Mr. Burnside explained the decision to the Respondent, the Respondent went over the scores of the applicants and asked how the decision would affect those scores. Mr. Burnside, in response to the Respondent's question, indicated how the decision would impact the score for the application of Macclenny, one of Langton Associates' clients. This conversation took place after site visits had taken place and after an applicant previously ranked above Macclenny had been moved down in the rankings as a result of the site visits. Therefore, Mr. Burnside was able to inform the Respondent that Macclenny was
within the fundable range of applicants. The Department's solution to the dispute was based in part on the fact that Macclenny was going to receive an award.
The Respondent told Mr. Burnside that the result of the Department's solution, as explained by Mr. Burnside, might be acceptable to him. The Respondent was satisfied even though the solution did not resolve the ultimate problem of gerrymandering. , which the Respondent has suggested was the reason he was so upset about the Department's actions.
The Respondent also asked Mr. Burnside whether the Department's decision could withstand a legal challenge. Mr. Burnside informed the Respondent that the Department's legal staff had opined that the decision was defendable.
If the problem raised by the Respondent had been raised by any person who was not a member of the Florida Legislature, Mr. Burnside would have recommended to Mr. Pelham that the Department take no action and allow the complaining individual to take legal action. The Respondent, therefore, clearly affected the manner in which the Department administered the CDBGP.
The Respondent's Contact with Department Staff Concerning the Monitoring of CDBGP Grants.
During October, 1989, Terri Ganson was employed as a Community Assistant Consultant for the Department. Ms. Ganson's duties included, among other things, monitoring CDBGP grants.
During late 1989, Ms. Ganson was responsible for monitoring three CDBGP grants that had been awarded to Marion County (hereinafter referred to as the "Marion Grants"). Ms. Ganson was required to write periodic monitoring reports concerning the Marion Grants.
The Marion Grants were being administered on behalf of Marion County by a grant consultant and competitor of the Respondent, Fred Fox Enterprises.
Prior to October 30, 1989, Marion County was awarded a fourth grant (hereinafter referred to as the "Fourth Marion Grant"), in the CDBGP.
Marion County was seeking bids for the administration of the Fourth Marion Grant.
Langton Associates and Fred Fox Enterprises had submitted proposals to administer the Fourth Marion Grant.
As of October 30, 1989, Marion County had not yet decided who would administer the Fourth Marion Grant.
On October 30, 1989, the Respondent telephoned Ms. Ganson. During this telephone call, the Respondent yelled at her and was very angry and upset.
The Respondent believed that Ms. Ganson was cooperating with Fred Fox, his competitor, and he wanted her to stop. The Respondent feared that Ms. Ganson's monitoring reports for the Marion Grants would cause the administration of the Fourth Marion Grant to be awarded to Fred Fox Enterprises. The Respondent did not believe the monitoring reports were critical enough of Fred
Fox Enterprises. The evidence failed to prove that Ms. Ganson in fact had favored Fred Fox Enterprises.
During his telephone conversation with Ms. Ganson on October 30, 1989, the Respondent indicated the following to Ms. Ganson:
He was concerned that Marion County would select Fred Fox Enterprises to administer the Fourth Marion Grant because of the monitoring reports Ms. Ganson had written concerning the Marion Grants. He accused Ms. Ganson of siding with Fred Fox.
He told Ms. Ganson that she had "probably cost him a $96,000 administration grant because of the way [her] reports were written" Lines 2-4, page 181, Transcript.
He demanded that a mistake in Ms. Ganson's monitoring reports for one of the Marion Grants be corrected.
He requested that Ms. Ganson send him a copy of the current contracts and milestones, all of the monitoring reports and all requests for modifications pertaining to the Marion Grants.
Ms. Ganson told the Respondent that she would check her reports to determine if she had made a mistake and, if so, would correct it. She ultimately determined that she had made a mistake and corrected it. She did not, however, totally modify her reports in the manner that the Respondent had demanded.
Ms. Ganson reported the October 30, 1989, telephone conversation with the Respondent in a memorandum to her immediate supervisor.
The Respondent's actions in telephoning Ms. Ganson on October 30, 1989, and his comments to Ms. Ganson were intended to avoid the loss by Langton Associates of the administration fees for the Fourth Marion Grant, which the Respondent believed could be $96,000.00.
Although the decision as to who administered the Fourth Marion Grant was a local decision, the Respondent attempted to influence that decision by demanding that Ms. Ganson, an employee of the Department, modify her monitoring reports. The Respondent's conversation with Ms. Ganson was intended to benefit Langton Associates and, thus, benefit himself.
The evidence failed to prove that the Respondent's conversation with Ms. Ganson was on behalf of any person or entity (other than Langton Associates) that he had received compensation from. Although the evidence proved that the Respondent was paid a salary by Langton Associates during the year in which his conversation with Ms. Ganson took place, the evidence failed to prove that Langton Associates had any clients at that time that were paying for Langton Associates' services. Although general testimony was elicited concerning Langton Associates' business and clients, testimony concerning clients that paid Langton Associates during any specific period of time was limited to the period of time preceding approximately July, 1989.
The Respondent's Contact with Department Staff Concerning Awards of Multiple Service Grant Contracts.
A copy of a letter dated September 22, 1989, was received by the Department. The letter was from Patricia Teems, the business manager of Langton Associates, to the Mayor of the City of Bunnell, Florida. The letter was on the letterhead of Langton Associates.
In the September 22, 1989, letter Ms. Teems claimed that the City of Bunnell had awarded an administrative contract in violation of Florida law. In the last paragraph of the contract, Ms. Teems stated the following:
Also, by this letter I am requesting DCA make a formal investigation into the procurement practices of the City of Bunnell.
The complaint made by Ms. Teems in the September 22, 1989, letter, concerned the award of multi-service contracts. A "multi-service" contract includes the awarding of a contract to administer a grant to the same consultant that prepared the application for which the CDBGP grant was awarded. Under Florida law in effect during 1989, multi-service contracts were prohibited unless the local government awarding such a contract indicted in writing that the multi-service contract was in the best interest of the local government.
Mr. Burnside was aware of the September 22, 1989, letter and the request of Langton Associates that the Department investigate its complaint against the City of Bunnell. The Department was investigating the complaint in October, 1989.
During October, 1989, Mr. Pelham was walking through a hall in the House of Representatives' office building. The Respondent approached Secretary Pelham and indicated that he wanted to speak to him.
During the Respondent's October, 1989, conversation with Mr. Pelham, the Respondent indicated the following:
He indicated that the Department was not enforcing one of the laws governing the CDBGP. The Respondent indicated that the problem involved the services that could be performed by someone who contracted with a local government to administer a CDBGP grant.
He indicated that he "was being hurt by . . . " the Department's failure to properly enforce the law.
He threatened to sue the Department unless the Department enforced the law properly.
The Respondent, who spoke in a low-key voice, was firm in expressing his position to Mr. Pelham that the law concerning multi-service contracts should be enforced as the Respondent interpreted the law.
Shortly after the conversation with the Respondent concerning multi- service contracts, Mr. Pelham spoke to Mr. Burnside about the conversation. Mr. Burnside explained to Mr. Pelham that Langton Associates had filed a copy of the September 22, 1989, letter to the Mayor of the City of Bunnell and that the Department had been requested to investigate the matter.
After Mr. Pelham and Mr. Burnside discussed the Secretary's encounter with the Respondent, they realized that the Respondent had been talking about the City of Bunnell incident when he spoke to Mr. Pelham. Mr. Pelham realized
that the Respondent had been suggesting that the City of Bunnell had not followed the correct procedures in awarding the administration contract and the consultant that was awarded the administration contract should not have been the same consultant that had obtained the grant.
Mr. Burnside responded on behalf of the Department to the request that the Department investigate the City of Bunnell incident by a letter to Ms. Teems dated January 22, 1990. Based upon information reviewed by the Department, including review by the Department's legal staff, the Department informed the Mayor of Bunnell and Ms. Teems that it had been concluded that the City had not violated the law.
Although the Respondent admitted that he was aware that he should not directly request that the Department investigate the City of Bunnell, he approached Mr. Pelham to discuss the matter with him. The Respondent's conversation with Mr. Pelham was intended to benefit Langton Associates because Langton Associates was interested in obtaining the grant administration contract the City of Bunnell had awarded to another consultant and, thus, benefit himself. If the Department had agreed with Ms. Teems' and the Respondent's argument that the City of Bunnell had acted illegally, the City of Bunnell could have been forced to select a different administrator for its grant. The Respondent hoped Langton Associates would be the newly selected administrator.
The evidence failed to prove that the Respondent's conversation with Mr. Pelham was on behalf of any person or entity (other than Langton Associates) that he had received compensation from. Although the evidence proved that the Respondent was paid a salary by Langton Associates during the year in which his conversation with Mr. Pelham took place, the evidence failed to prove that Langton Associates had any clients at that time that were paying for Langton Associates' services. Although general testimony was elicited concerning Langton Associates' business and clients, testimony concerning clients that paid Langton Associates during any specific period of time was limited to the period of time preceding approximately July, 1989.
The Respondent's Contact with Department Staff Concerning Certain Department Policies.
In January, 1990, Wanda A. Jones, worked in the Department's Bureau of Housing, Division of Housing and Community Development.
On January 23, 1990, Ms. Jones attended a CDBGP workshop in Jacksonville, Florida, sponsored by the United States Department of Housing and Urban Development.
The Respondent was introduced to Ms. Jones during the January 23, 1990, workshop by an employee of Langton Associates. The Respondent began questioning Ms. Jones about the Department's policy that allowed Noma, Florida, to continue to be awarded funds under the CDBGP year after year.
Noma is a very small community that had received a number of grants and the Respondent was challenging the Department policy that allowed such a small community such as Noma to continue to receive grants.
Ms. Jones attempted to explain the Department's policy to the Respondent.
At the time of the Respondent's conversation with Ms. Jones, the Department was in the middle of a funding cycle. The weight of the evidence, however, failed to prove that any application had been filed by Langton Associates on behalf of any client during that funding cycle.
The Respondent became upset with Ms. Jones' responses and raised his voice. The Respondent was aggressive, confrontational and he badgered Ms. Jones.
Ms. Jones felt very uncomfortable. Her discomfort was caused in part by the fact that the Respondent was a legislator and he was holding her accountable for Department actions.
The Respondent told Ms. Jones that the Department's policy was impacting on his business. By eliminating the situation that allowed governments like Noma to continue to obtain grants, other governments would become eligible to receive CDBGP funds. Some of those governments might include Langton Associates' clients or prospective clients.
After Ms. Jones left the Respondent, he again approached her, apologized and then started to berate her again. During this conversation, the Respondent asked if Ms. Jones would speak to him "off the record" and express her personal opinions about Department actions.
The Respondent's conversation with Ms. Jones was intended to benefit Langton Associates and, thus, benefit himself.
The evidence failed to prove that the Respondent's conversation with Ms. Jones was on behalf of any person or entity (other than Langton Associates) that he had received compensation from. Although the evidence proved that the Respondent was paid a salary by Langton Associates during the year in which his conversation with Ms. Jones took place, the evidence failed to prove that Langton Associates had any clients at that time that were paying for Langton Associates' services. Although general testimony was elicited concerning Langton Associates' business and clients, testimony concerning clients that paid Langton Associates during any specific period of time was limited to the period of time preceding approximately July, 1989.
CONCLUSIONS OF LAW
Jurisdiction and Burden of Proof.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989). Section 8(f), Article II, of the Constitution of the State of Florida, Section 112.322, Florida Statutes, and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the "Code of Ethics for Public Officers and Employees"), and complaints concerning a breach of public trust by public officers in violation of the Constitution of the State of Florida.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d
249 (Fla. 1st DCA 1977). In this proceeding it is the Commission, through the Advocate, that is asserting the affirmative: that the Respondent violated Sections 112.313(6) and 112.3141(1)(c) , Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida. Therefore, the burden of proving the elements of the Respondent's alleged violations was on the Commission.
The Respondent's Alleged Violation of Section 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida.
Section 8(e), Article II, of the Constitution of the State of Florida, provides, in pertinent part, the following:
No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.
Section 112.3141(1)(c), Florida Statutes, provides, in pertinent part:
No member of the Legislature shall personally represent another person or entity for compensation during his term of office before any state agency other than judicial tribunals.
A violation of Section 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida, requires proof of the following elements:
The Respondent must have been a member of the Legislature;
The Respondent must have represented another person or entity;
The Respondent's representation of another person or entity must have been before a state agency other than a judicial tribunal; and
The Respondent's representation of another person or entity must have been for compensation.
1. The First Element; Was the Respondent a Member of the Legislature.
149. The evidence in this case proved, and the parties stipulated, that the Respondent was elected to, and did serve as a member of the Florida House of Representatives from October 22, 1985, through the date of the formal hearing. All of the actions of the Respondent complained of in this proceeding occurred during this period of time. The first element has, therefore, been proved with regard to all of the Respondent's contacts with Department employees described in this Recommended Order.
2. The Second Element: Did the Respondent Represent Another Person or Entity?
The term "represent" is defined in Section 112.312(17), Florida Statutes, to mean:
. . . actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client.
This definition specifically applies to the use of the term "represent" under Section 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida. See Section 112.312, Florida Statutes.
The weight of the evidence proved that the type of actions the Respondent took during all of the contacts or attempted contacts of the Respondent with Department employees described in this Recommended Order constituted the type of actions which may constitute representation.
Although the nature of the Respondent's activities constituted acts which may be considered representation, those acts must also have been performed on behalf of "another person or entity" in order to constitute the type of representation prohibited by the Constitution and the Code of Ethics for Public Officers and Employees.
The Advocate has argued that all of the Respondent's contacts with the Department were made on behalf of Langton Associates and himself and, therefore, those contacts constitute "representation." The Advocate has relied upon Commission on Ethics Opinion (hereinafter referred to as "CEO") 81-24. In CEO 81-24, the Commission opined, in relevant part, the following:
As we advised in CEO 77-168 the purpose of this provision appears to be to secure the public trust against abuse by prohibiting a legislator from using the influence of his office over State agencies in order to gain benefits for a private client, as well as by prohibiting situations which would give the appearance of improper influence even in the absence of intentional efforts to misuse the power of legislative influence. If you, personally, were to negotiate with the Hospital in behalf of your corporation, we recognize that you would not be representing a "client" as an attorney would, but you nevertheless would be representing your corporation. The constitutional prohibition is not phrased in terms of representation of a "client," but rather in terms of representation of persons or entities. We understand this choice of language to indicate that the people of this State intended to prohibit a broader range of representation
than that only of "clients" before State agencies.
However, Article II, Section 8(e) addresses only those situations where a member of the Legislature "personally" represents another person or entity before certain State agencies. As we noted in CEO 77-168, we find nothing in this constitutional provision which would prohibit your corporation from being represented by another person in contacting a State hospital or other State agency regarding the provision of services by the corporation.
Based upon this opinion of the Commission, it appears that it is the position of the Commission that a member of the Legislature may not personally appear before a state agency on behalf of a corporation which the legislator owns or is employed by.
In order to constitute representation of "another person or entity" there must be a showing that the activities performed by a member of the Legislature on his or her own behalf, or on behalf of the legislator's corporate entity as a minimum give the appearance of impropriety. Such impropriety exists where a legislator attempts to secure a benefit for any person or business from whom or which the legislator may benefit as a result of the legislator's activities. Although it is true that a legislator may, according to CEO 86-31, deal directly with a state agency at least in renewing the rental of a building the legislator owns, actions of a state legislator before a state agency which could lead to some action by that state agency which could benefit that legislator's employer and/or corporate business, or a client of the legislator's employer or corporate business, creates the type of appearance of impropriety that Section 112.3141(1)(c), Florida Statutes, and Section (8)(e), Article II of the Constitution of the State of Florida, prohibit. See CEO 86-27.
The Commission has also recognized that a state legislator may represent himself or herself before an agency without violating Section 8(e), Article II of the Constitution of the State of Florida at least in one limited situation: negotiations by a legislator for the renewal of the lease to state agency of a building the legislator owned. See CEO 86-31. The Respondent has argued that the same rationale should apply to the prohibition of Section 112.3141(1)(c), Florida Statutes. The Respondent has also argued that the rationale of CEO 86-31 should apply to an individual's corporate alter ego.
This argument is contrary to other Commission opinions, including CEO 81-24, and the provisions of law at issue in this case and is therefore rejected.
Although it is true that the definition of "represent" includes a reference to activities taken "on behalf of a client", that definition must be read in pari materia with the Constitutional prohibition and the prohibition of Section 112.3141(1)(c), Florida Statutes. The prohibition of those provisions applies to activities of a type which may be performed for a client if they are performed by a member of the Legislature for any other person or entity, even a corporate business of the legislator.
The evidence in this case proved that some, but not all, of the Respondent's contacts with Department employees were made on behalf of clients of Langton Associates and, consequently, were performed on behalf of Langton Associates. Langton Associates was in the business of providing a service to its local government clients. As those clients fared, so also did Langton
Associates fare. The evidence also proved that other contacts were made by the Respondent only on behalf of Langton Associates. The Respondent's contacts with the Department included the following:
The Respondent's telephone call to Mr. Parmer in December, 1988, concerning the 1988 funding cycle (hereinafter referred to as the "Parmer Call");
The Respondent's telephone conversation with Ms. Frohock in December, 1988, concerning the 1988 funding cycle (hereinafter referred to as the "Frohock Contact");
The Respondent's request for a meeting in Representative Jones' office and the actual Meeting in January, 1989, concerning the 1988 funding cycle;
The Respondent's telephone conversation with Mr. Burnside in February, 1989, following the Meeting, concerning the 1988 funding cycle (hereinafter referred to as the "Burnside Contact");
The Respondent's telephone conversation in October, 1989, with Ms. Ganson concerning her monitoring reports for the Marion Grants (hereinafter referred to as the "Ganson Contact");
The Respondent's conversation with Mr. Pelham concerning the City of Bunnell in October, 1989 (hereinafter referred to as the "Pelham Contact"); and
The Respondent's conversation with Ms. Jones concerning Noma, Florida, in January, 1990 (hereinafter referred to as the "Jones Contact").
The Parmer Call, the Frohock Contact, the Meeting and the Burnside Contact, all of which related to the 1988 funding cycle of the CDBGP, were all made on behalf of clients which Langton Associates had prepared applications for and submitted for the 1988 funding cycle. The evidence failed to prove that the other contacts (the Ganson, Pelham or Jones Contacts) were made on behalf of any person or entity other than the Respondent and/or Langton Associates. The evidence also failed to prove that these contacts were made at a time when Langton Associates had any clients.
The evidence did prove, however, that all of the Respondent's contacts with the Department, were made on behalf of Langton Associates. The contacts related to the 1988 funding cycle were made to protect the reputation of Langton Associates. The Ganson and Pelham Contacts were made in an effort by the Respondent to improve the chances of Langton Associates to get specific business contracts which Langton Associates was competing for or hoped to compete for at the time of the contacts. Finally, the Jones Contact was made in an effort by the Respondent to eliminate an interpretation of Florida law by the Department which the Respondent told Ms. Jones was impacting his business.
Based upon the foregoing, it is concluded that the Parmer Call, the Frohock Contact, the Meeting, the Burnside Contact, the Ganson Contact, the Pelham Contact and the Jones Contact all constituted representation by the Respondent on behalf of another person or entity.
3. The Third Element: Was the Respondent's Representation Before a State Agency Other than a Judicial Tribunal?
An "agency" is defined in Section 112.312(2), Florida Statutes, as follows:
"Agency" means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.
The Department comes within the definition of "agency" as that term is used in Section 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida.
Although it is clear that the Department is an "agency", at issue is whether the activities of the Respondent before the Department constituted the type of representation which a legislator is prohibited from performing before a state agency. The Respondent has argued that all of his contacts with the Department at issue in this proceeding were made only in his capacity as a concerned legislator. In support of this position, the Respondent has suggested that he did not specifically mention any client of his or Langton Associates during any of his contacts with the Department.
The difficulty with the Respondent's position is that his characterization of his activities before the Department as merely expressing his concern as a legislator is not supported by the weight of the evidence. The Respondent's inquiries, actions and contacts with Department employees described in this Recommended Order all involved more than just a legislator expressing an opinion about issues of general legislative concern:
The Parmer Call, the Frohock Contact, the Meeting and the Burnside Contact: Each of the Respondent's activities associated with these contacts or attempted contacts were the direct result of the treatment of some of Langton Associates' clients by the Department and were intended to affect how those clients fared in the 1988 funding cycle. His actions were also intended to benefit Langton Associates. Although the Respondent may have been concerned about the general issue of gerrymandering, it was also his concern that the Department had not treated clients of Langton Associates or Langton Associates properly that caused the Respondent to be so distressed that he indicated, and acted as if, he did not care what his actions cost him politically or financially.
To believe that the Respondent was not interested in how Langton Associates' clients, especially Macclenny, had been treated by the Department or whether they received a grant for the 1988 funding cycle defies logic and reason. To believe that the Respondent was merely upset about a philosophical issue would be to believe that the Respondent is not much of a businessman or that he is a businessman who is not concerned with how his corporation's services impacted on its clients. There is no reason to reach such conclusions.
The Respondent's argument that he raised issues concerning the 1988 funding cycle with the Department only as those issues affected the entire universe of possible applicants is also not persuasive. To the extent that the Respondent discussed the 1988 funding cycle with Department employees and advocated actions by the Department, he necessarily included those clients for
which Langton Associates had prepared applications for the 1988 funding cycle. Additionally, his suggestions to the Department, although couched in general terms of all applicants, his suggestions would in all likelihood have benefited Langton Associates' clients (especially Macclenny) more that the majority of the other applicants. The Respondent's actions were also considered necessary by the Respondent because of the possible harm to the reputation of Langton Associates caused by the Department's actions. Langton Associates was one of the only consultants that heeded the Department's instructions concerning the use of gerrymandered target areas for the CDBGP 1988 funding cycle. When the Department reversed its position and accepted the gerrymandered target areas proposed by most of the applicants in the 1988 funding cycle for housing, the Respondent had to be concerned about those who would question why Langton Associates had not filed gerrymandered maps. In light of these concerns, the Respondent had to have felt compelled to take some action to force the Department to admit that it had been in error and not Langton Associates, even if the clients of Langton Associates were not directly benefited.
The Respondent specifically told Ms. Frohock the following during the Frohock contact: that his competitors had benefited by the Department's actions; that he had lost money in the past as a result of gerrymandering; that he wanted Langton Associates' clients to be allowed to gerrymander or require other applicants to be treated the same as those clients; that he was going to shut down the CDBGP and get everyone working in the CDBGP at the Department fired; and that he would probably only get two grants approved. These are not actions and statements of a legislator who is only concerned with his constituents.
The Respondent specifically stated the following during the Meeting: that Langton Associates (and others) had been misled by the Respondent and had relied upon the Department's instructions; that the Department should accept non-gerrymandered maps from the applicants that had filed gerrymandered maps (which excluded Langton Associates' clients) or force them to play by the same rules; that he was a consultant and that Langton Associates had prepared
applications; that his clients (and two other applicants) would be prejudiced by the Department's actions; that all of the Department employees (except one) involved in the CDBGP should be fired. These are also not actions and statements of a legislator who is only concerned with his constituents.
Finally, the Respondent evidenced a lack of concern about the general issue of gerrymandering when Mr. Burnside informed him of the Department's resolution of the issues the Respondent had raised concerning the 1988 funding cycle awards. Having been told that Macclenny would receive an award, the Respondent raise no further concern about the issue of gerrymandering with Mr. Burnside.
The Ganson Contact: The Respondent's contact with Ms. Ganson concerning her monitoring reports for the Marion Grants was the direct result of his concern that Ms. Ganson's reports had harmed Langton Associates' chances of being awarded the contract for the administration of the Fourth Marion Grant. The Respondent stated that he was concerned about the harm Ms. Ganson had caused Langton Associates and told her she had "probably cost him $96,000.00." The Respondent's contact with Ms. Ganson was made in an effort to benefit Langton Associates regardless of whether his complaint to her was correct or whether he requested her to take actions which were not appropriate.
The Pelham Contact: The Respondent's contact with Mr. Pelham concerning the City of Bunnell was the direct result of his concern that the
City of Bunnell had improperly awarded a contract that Langton Associates was seeking to a competitor. The Respondent specifically stated to Mr. Pelham that the Department's actions were hurting his business. The Respondent's contact with Mr. Pelham was made in an effort to benefit Langton Associates regardless of whether his complaint to Mr. Pelham was correct or whether he requested him to take actions which were not appropriate.
The Jones Contact: The Respondent's contact with Ms. Jones concerning the Noma issue was also, by the Respondent's own admission to Ms. Jones, the result of the Respondent's belief that the Department's actions were impacting his business. The Respondent's contact with Ms. Jones was made in an effort to benefit Langton Associates regardless of whether his complaint to Ms. Jones was correct or whether he requested her to take actions which were not appropriate.
Based upon the foregoing, it is concluded that the Respondent's activities before the Department, which were made on behalf of Langton Associates and, in the case of the Parmer Call, the Frohock Contact, the Meeting and the Burnside Contact, Langton Associates' clients also, are sufficient to constitute representation of another person or entity before a state agency. See CEO 77-168. See also CEO 88-68 and CEO 81-24.
4. The Fourth Element: Was the Respondent's Representation For Compensation?
171. The evidence proved that during the time that the Respondent represented Langton Associates and/or its clients before the Department the Respondent was paid a salary by Langton Associates. The evidence also proved that the Respondent was the sole shareholder of the stock of Langton Associates. Finally, with regard to the Respondent's contacts concerning the 1988 funding cycle, Langton Associates, and indirectly, the Respondent, were being paid by clients of Langton Associates on whose behalf the Respondent acted. Based upon these facts, it is concluded that the Respondent was compensated by another person or entity for his representation before the Department.
5. Conclusion.
Based upon the foregoing, it is concluded that the Respondent was compensated for representing another person or entity, Langton Associates and/or its clients, before a state agency, the Department, while serving as a member of the Florida House of Representatives. The actions of the Respondent were intended to benefit his business interest. Although Langton Associates could have taken some, but not all, of the actions that the Respondent took directly with the Department, the Respondent's taking of those actions caused the very appearance of impropriety that Section 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida, were intended to prevent. Therefore, it is concluded that all of the Respondent's activities before the Department described in this Recommended Order constituted a violation of Section 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida.
The foregoing conclusions are made whether the "clear and convincing evidence" standard or the "preponderance of the evidence" standard is applied to the evidence. Compare Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); and Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988); with In re: Blackburn, 13 FALR 1859 (Commission on Ethics 1989).
The Respondent's Alleged Violation of Section 112.313(6), Florida Statutes.
Section 112.313(6), Florida Statutes, provides:
(6) MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.
A violation of Section 112.313(6), Florida Statutes, requires proof of the following elements:
The Respondent must be either a public officer or public employee;
The Respondent must have used or attempted to use his official position or property or resources within his trust, or performed his official duties:
Corruptly; and
With an intent to secure a special privilege, benefit or exemption for himself or others.
1. The First Element: Public Officer or Public Employee.
Section 112.313(1), Florida Statutes, defines the terms "public officer" to include "any person elected or appointed to hold office in any agency . . . ." An "agency" is defined in Section 112.312(2), Florida Statutes, to mean "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative "
The evidence proved that the Respondent was a member of the Florida House of Representatives. Therefore, the Respondent was a "public officer" for purposes of Section 112.313(6), Florida Statutes.
2. The Second Element: Use of Official Position or Property or Resources.
The second element of a violation of Section 112.313(6), Florida Statutes, has also been proved. The evidence proved that the Respondent used his position as a legislator with the intent of securing a special privilege, benefit or exemption for himself or others, as discussed, supra. At issue is whether the special privilege, benefit or exemption that the Respondent sought was "corruptly" sought by the Respondent in his capacity as a legislator.
The term "corruptly" is defined in Section 112.313(7), Florida Statutes, as follows:
(7) "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or
compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.
The evidence in this case proved that some of the Respondent's actions before the Department were made "corruptly":
The Parmer Call, the Frohock Contact, the Meeting and the Burnside Contact: The benefit that the Respondent sought during these contacts was the award of a CDBGP contract to clients of Langton Associates and, more importantly, the removal of the appearance that Langton Associates had made a mistake in following the Department's instructions during the 1988 funding cycle.
Not all of the Respondent's actions in seeking these benefits were taken "corruptly". The clients of Langton Associates that had filed applications during the 1988 funding cycle and Langton Associates had relied upon a representation of the Department which it later reversed. This raised a legal issue of whether the Department should be equitably estopped from accepting gerrymandered target areas. As a "substantially affected person" the clients of Langton Associates and, although maybe not from a legal "standing" point of view, at least from a practical point of view, Langton Associates, were reasonably upset by the Department's actions and were arguably entitled to take some legal action against the Department.
To some extent, the Respondent's actions, i.e., threatening to sue the Department, were actions which were consistent with the legal actions which you would expect Langton Associates and its clients to take with the Department. They were not, therefore, actions that were taken with a "wrongful intent". This cannot be said of all of the Respondent's actions, however.
The following actions which the Respondent took with the Department were taken with a wrongful intent and were taken because of the Respondent's position and power as a legislator: the Respondent's threat to shut down the CDBGP and have Department employees fired; the Respondent's threat to obtain assistance from a Florida Senator and the Chairman of the House Committee which had authority over the Department's programs; the Respondent's threat to obtain assistance from the Lt. Governor and the House Speaker Designate; the Respondent's use of his power to obtain a meeting in the office of the Chairman of the House Committee which had authority over the Department's programs; and the Respondent's effort to get the Department out of the process by taking no action and allowing the Legislature to resolve the problem. Finally, the Respondent admittedly used his position and power as a legislator to attempt to force the Department to take actions which should have been requested by Langton Associates or its clients. All of these actions are significant only because of the Respondent's power and position. It is not beyond the realm of possibilities that the Respondent could carry out his threats.
The Ganson, Pelham and Jones Contacts: The Respondent's comments to Ms. Ganson, Mr. Pelham and Ms. Jones were essentially reasonable and without wrongful intent. The Respondent's comments and actions did not seek some action which could not have been requested by Langton Associates. The Respondent's concerns involved whether certain reports by Ms. Ganson were correct (and at least one was in error) and whether the Department was correctly interpreting the law. The Respondent did not request anything inconsistent with the proper
performance of his public duties as a legislator. The only problem with these contacts was that the Respondent made them on behalf of another person or entity, a violation of the Constitution and another provision of the Code of Ethics for Public Officials and Employees. The fact that he made the contacts while serving as a legislator alone does not, however, make the contacts "corrupt."
3. Conclusion.
Based upon the foregoing, it is concluded that the Respondent violated Section 112.313(6), Florida Administrative Code.
The foregoing conclusions are made whether the "clear and convincing evidence" standard or the "preponderance of the evidence" standard is applied to the evidence. Compare Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); and Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988); with In re: Blackburn, 13 FALR 1859 (Commission on Ethics 1989).
Penalty.
At the time that the Respondent violated Section 8(e), Article II, of the Constitution of the State of Florida, the Constitution provided no penalties for violations of Section 8(e), Article II, of the Constitution of the State of Florida. Therefore, no penalty may be imposed upon the Respondent in this case for his violation of the Constitution.
Section 112.317, Florida Statutes, does provide penalties which may be imposed for a violation of the Code of Ethics for Public Officers and Employees. Section 112.317, Florida Statutes, provides, in pertinent part, the following:
Violation of any provision of this part . . . shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:
(a) In the case of a public officer:
Impeachment.
Removal from office.
Suspension from office.
Public censure and reprimand.
Forfeiture of no more than one-third salary per month for no more than 12 months.
A civil penalty not to exceed $5,000.
Restitution of any pecuniary benefits received because of the violation committed....
The Advocate has requested that a fine of $8,000.00 ($4,000.00 for each statutory violation) and public censure and reprimand be recommended.
The offenses committed by the Respondent are serious. The Respondent attempted to use his power and position as a public officer and servant to cause an agency of the State of Florida to take actions which would have directly benefitted the Respondent's business interests. His actions were taken without regard to the consequences of his contacts and at the expense of the employees of the Department the Respondent contacted and demanded action of. The
Respondent harassed, threatened and intimidated most of those employees, who had little recourse but to put up with it. The Respondent's actions also occurred on several occasions, evidencing a pattern of improper conduct.
The Respondent should have known that his actions were improper. He evidenced enough insight into the potential for violating the Code of Ethics for Public Officers and Employees by requesting an opinion from the Commission. Despite the warning of the Commission not to engage in business activities before the Department contained in the Commission's opinion, the Respondent proceeded to represent his business directly with Department employees.
Finally, the Respondent was not without a remedy for the problems he was experiencing with the Department: he could have allowed Langton Associates' employees to take action with the Department directly on behalf of Langton Associates. This was the course of action the Respondent took before the Pelham Contact when an employee of Langton Associates wrote to the Department and raised the issue the Respondent later discussed with Mr. Pelham directly during the Pelham Contact. Instead of consistently choosing this alternative, the Respondent elected to deal directly with the Department in violation of the Code.
The only mitigating factor proved during the hearing is that the Respondent did at least have some reason for being distressed over some of the Department's actions; he had some reason to be angry. This fact has been taken into account in deciding on what penalty to recommend.
Based upon a consideration of all of the evidence in this case, it is concluded that the Respondent should be subjected to public censure and reprimand and a civil penalty of $5,000.00 ($2,500.00 for each statutory violation).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public
Report finding that the Respondent, Michael E. Langton, violated Sections 112.313(6) and 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida, as alleged in Complaint No. 90-86. It is further
RECOMMENDED that the Respondent be subjected to public censure and reprimand and be required to pay a civil penalty of $5,000.00 ($2,500.00 for each statutory violation).
DONE and ENTERED this 27th day of November, 1991, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1991.
APPENDIX TO RECOMMENDED ORDER
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Advocate's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
A.
1 1-3.
2 6-7.
3 8.
4 See 10. The weight of the evidence failed to prove what years the percentages apply.
5 11.
6 Hereby accepted.
7 5.
B.
1 13-14 and 21-23.
2 See 25.
3 24.
"Gerrymandering"
1 29-30, 38 and 41.
2 32-34.
3 31-33.
4 32-33 and 35.
5 35.
6 See 35.
7 37.
The 1988-1989 Funding Cycle
1 18 and 38.
2 18.
3 44 and 51.
4 82 and hereby accepted.
5 46-47.
6 48-49.
7 19, 38 and 52.
8 52-53.
9 The first sentence is not relevant. 54-55.
10 55-56.
11 59.
12 56.
13 57 and 61-63.
14 58 and 61.
15 63.
16 58.
17 62-63.
18 59, 66 and 73.
Hereby accepted.
See 75 and 80.
21 76-77 and 80.
22 34.
23 81-83.
24 81.
83 and hereby accepted.
Hereby accepted.
27 80.
28 84.
29 87.
30 86-87.
31 87.
The testimony supporting these proposed findings was too speculative.
52 and hereby accepted.
34 89-90.
35 87 and 89-90.
36 90.
37 Not relevant.
38 92.
39 95, 97 and 101.
40 97.
41 101.
42 104.
43 100-101.
44-45 102.
46-47 Although these findings of fact are true, there could have been a number of reasonable explanations for why the Respondent did not proposed legislation concerning gerrymandering.
48 There proposed findings of fact are generally true. The fact that there are inconsistencies in testimony alone is not why some of the Respondent's testimony was not credible, however. The Respondent's explanation has been rejected based upon the weight of all of the evidence in
this | proceeding. | |
C. | ||
1 | 105. | |
2 | Hereby accepted. | |
3 | Not relevant. | |
4 | 106. | |
5 | 112-113. | |
6 | 114. | |
7 | 113. | |
8 | 114. | |
9 | 109-111. | |
10 | 113-114. |
11 See 113. The evidence did not prove whether Ms. Ganson did or did not intend to favor Mr. Fox.
12 116.
13 118.
D.
1-2 112.
3 120-121.
4 Hereby accepted.
5 124-125.
6 126.
7 127.
8 Not supported by the weight of the evidence or not relevant.
9 128.
10 129 and see 130.
E.
1 131.
2 132. The meeting took place on January 23, 1990.
3 133 and 135.
4 133-134.
5 134 and 139.
6 See 136.
7 134.
8 138.
9-10 Not supported by the weight of the evidence. No weight has been given to the sworn statement of Ms. Jones.
11 Hereby accepted.
12 141.
13 Hereby accepted.
14 139.
15 Hereby accepted.
16 140.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1-2.
2 4, 6 and 8.
3 7.
4 13-14 and 16.
5 21-22.
6 22.
Not supported by the weight of the evidence. The interrogatories were not offered into evidence.
See 26.
9 5.
10 Not supported by the weight of the evidence. The interrogatories were not offered into evidence.
11 27.
12 28.
13 52.
14 57.
15-16 Hereby accepted.
31-32. The last sentence is not supported by the weight of the evidence. Respondent's exhibit 14 was offered and accepted into evidence only for impeachment purposes.
Not relevant.
19 14.
Hereby accepted.
See 32 and 35.
Hereby accepted.
23 39-42.
24 Although generally true, the intent of one legislator does not support a finding concerning the intent of the entire Legislature in enacting any law.
25 41.
26 40-42.
27 See 43.
28 44.
29 51.
30 56.
31 See 58. The Respondent's conversation with Ms. Frohock was not to raise "numerous complaints regarding the DCA's administration of the CDBG program."
32-36 See 67-72.
37 See 75 and 77-78. The evidence failed to prove that the Meeting was requested by the Respondent to discuss the general administration of the CDBGP.
38 76.
39 85.
40 78.
41 81.
42 79 and 84.
43 87.
See 87.
Not relevant.
See 91.
47 See 87 and 89-90.
See 91. Not relevant.
Not supported by the weight of the evidence except as found in 101. See 100-104.
50-51 Not supported by the weight of the evidence. Ms. Frohock's sworn statement was hearsay.
52-54 Not relevant.
55 84.
56 Not relevant.
57 See 67-72 and 90-94.
58 124.
59 125.
60 See 120-121. The third sentence is not supported by the weight of the evidence.
61 See 130-131.
62 112-114.
63 114-115.
64 115.
Not supported by the weight of the evidence. See 118.
Not relevant.
67 See 118-119.
68 | 132. | |
69 | 133-134. | |
70 | 134. | |
71 | 137. | |
72 | 137 and 143. | |
73 | See 142. | |
74 | Not supported by the weight of the | evidence. |
51 |
COPIES FURNISHED:
Virlindia Doss Bonnie J. Williams
Craig B. Willis Executive Director Assistant Attorneys General Commission on Ethics Department of Legal Affairs The Capitol, Room 2105 The Capitol, Suite 1601 Post Office Box 6
Tallahassee, FL 32399-1050 Tallahassee, FL 32302-0006
Mark Herron, Esquire Jeffrey H. Barker, Esquire Akerman, Senterfitt, Eidson
& Moffit
216 South Monroe Street Suite 300
Post Office Box 10555 Tallahassee, FL 32302-2555
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA
COMMISSION ON ETHICS
In re MICHAEL E. LANGTON,
Complaint No. 90-86
Respondent. DOAH CASE NO.: 91-3367EC
/
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on November 27, 1991 by the Division of Administrative Hearings (a copy of which is attached and incorporated by reference). The Hearing Officer recommends that the Commission find that the Respondent violated Sections 112.313(8) and 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida. Respondent filed exceptions.
Having reviewed the Recommended Order, the Respondent's exceptions, and the record of the public hearing of this complaint, and having heard the arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings and recommendations:
Rulings on Respondent's Exceptions
The Respondent excepts to the Hearing Officer's Conclusion of law in the Recommended Order numbered "B. 2." Although the Respondent's summary of this conclusion states, "That conclusion may be summarized as holding that Mr. Langton violated the `Sunshine Amendment,' Section 8(e) Article II of the Florida Constitution, and the Code of Ethics for Public Officers and Employees, Section 112.3141(1)(c), Florida Statutes," that conclusion is actually summarized in the Recommended Order as follows: "Based upon the foregoing, it is concluded that the Parmer Call, the Frohock Contact, the Meeting, the Burnside Contact, the Ganson Contact, the Pelham Contact and the Jones Contact all constituted representation by the Respondent on behalf of another person or entity." (Recommended Order, page 47). The Respondent appears to be excepting to the Hearing Officer's conclusion that the Respondent's contacts with DCA constituted "representation" of another person or entity.
Particularly, the Respondent argues that "representation" by the Respondent was dependent on the Respondent having a "client," and that, consequently, the Hearing Officer improperly broadened the meaning of the quoted terms in concluding that the Respondent's wholly owned corporation was the person or entity he represented before the DCA. Further, the exception argues that the Hearing Officer improperly relied on CEO 81-24 in making his conclusion.
As was pointed out by the Hearing Officer, the statutory definition of "represent" found in Section 112.312(17), Florida Statutes, must be considered in terms of the express language of the Constitutional section and statutory section prohibiting representation; the terms "person" and "entity" found therein clearly encompass fictitious persons and business entities such as Langton Associates, Inc.--the Respondent's wholly-owned corporation. If the Legislature had intended to restrict what would constitute "another person or entity" to a possible subclass that would include only "clients," it would have done so by defining "another person or entity" rather than by defining the term "represent." The term "represent" initially was defined for purposes of the quarterly "client" disclosure requirements of section 112.3145, Florida Statutes, in 1975, well before the Constitutional or statutory prohibitions at issue here. Further, the term "client," under its plain and ordinary definitions, has broader meaning than that given it by way of example in CEO 81-
In addition, it is well settled under corporate law that, with rare exception, a corporation is a separate legal entity or legal person from the natural person who owns or incorporates it. Moreover, in addition to recognizing the distinction between a corporate entity and its owner for purposes of finding a violation of the Code of Ethics or a prohibited conflict
thereunder, we have recognized that distinction in exonerating respondents or in not finding prohibited conflicts. See, for example, CEO 91-7, wherein we found that a school board member would not be in violation of Section 112.313(7), Florida Statutes, were his corporation to contract with a business entity which was doing business with the school board. Also, the statutory definition of "represent," to the extent, if any, that that definition will not support a finding of representation under the Constitutional section charged in this matter, was only made applicable to the Constitutional section by Chapter 91-85, Laws of Florida, and thus was not applicable at the time of the Constitutional violations found herein.
The Respondent further argues, regarding the Hearing Officer's conclusion that the contacts with DCA constituted "representation," that in order for an entity to be represented before a state agency that entity must have an interest before the agency, and that neither Langton Associates, Inc. nor the local governments to which it provided services had an interest before DCA.
There are findings of fact made by the Hearing Officer based upon competent, substantial evidence that would support a conclusion that Langton Associates, Inc. and the local governments to which it provided services had interests before DCA, including findings of fact 82, 88, 89, 70, 71, 90, 91, 92,
93, 114b, 117, 118, 125b, 130, and 140.
Regarding the Respondent's argument that "Langton Associates, Inc., and Michael E. Langton are, but for a ministerial statutory corporate filing, one and the same," it is noted, as previously stated in the response to this exception, that a wholly-owned corporation can be a separate entity for purposes of the law relating to representation before State agencies. In addition, the Hearing Officer specifically concluded that some, although not all, of the Respondent's contacts with DCA were made on behalf of clients of Langton Associates.
Additionally, the Respondent argues that the case of Blackburn v. State of Florida, Commission on Ethics, 18 FLW 02894 (1st DCA, November 15, 1991), would prevent a conclusion that the Respondent violated the Constitutional and statutory representation provisions at issue herein, unless the activities under scrutiny were for the sole purpose of violating those provisions.
Blackburn is inapplicable to the Respondent's representation charges because it involved a local government official accused of misuse under Section 112.313(8), Florida Statutes, a far different provision than those at issue for the Respondent, and because the Blackburn court specifically limited its holding to the facts of that case. A finding by us that a Legislator could escape the proscriptions of Section (8)(e), Article II of the State Constitution, and Section 112.3141(1)(c), Florida Statutes, by relying upon a supposed legislative purpose for all of his contacts with State agencies would only serve to strip those provisions of all meaning and significance.
Further, our Public Report in In Re JOHN RENKE, Complaint No. 88-52, cited by the Respondent, is inapplicable to the Respondent's situation because in that matter we found that there was no probable cause to believe that Representative Renke's representation had been "for compensation." In contrast, in the matter currently before us, the Hearing Officer has found, based upon competent, substantial evidence, that the Respondent's representation was compensated.
Therefore, the Respondent's exception numbered "1" is rejected.
The Respondent excepts to the Hearing Officer's Conclusion of Law numbered "C.2.a." by arguing that the Hearing Officer fails to identify the special privilege, benefit, or exemption which was sought by the Respondent. Such argument is contrary to the language of the cited conclusion which states: "The benefit that the Respondent sought during these contacts was the award of a CDBGP contract to clients of Langton Associates and, more importantly, the removal of the appearance that Langton Associates had made a mistake in following the Department's instructions during the 1988 funding cycle." In addition, there are findings of fact based upon competent, substantial evidence which support the conclusion.
The Respondent also argues that the conclusion of law deals with an issue (the Respondent's communication style) which was not at issue in this matter, and, thus, any references to or treatment of the Respondent's communication style in the Recommended Order is a deviation from the essential requirements of law. However, the conclusion is not phrased in terms of a determination as to the Respondent's communication style, but, rather, is phrased in a manner which addresses the elements of Section 112.313(8). Further, threats, communication, or communicative action by the Respondent can form the evidential basis upon which the findings of fact and conclusions of law of the Recommended Order are based.
The Respondent's argument citing the Blackburn decision is inapplicable to the determination of the Hearing Officer that the Respondent violated Section 112.313(8), Florida Statutes, as well as being inapplicable to the representation sections as stated above. To begin with, the Blackburn court specifically limited its holding to the facts of that case. Further, unlike Blackburn, where the issues involved general political concern over a garbage collection ordinance and its affect on the office-holding fortunes of a public officer, the instant matter involved the Respondent's use of his public position as a State Legislator in attempts to have public employees of an executive branch department take actions which would have the effect of specifically advancing the monetary and business interests of the Respondent's company and the clients which it served. Such interests do not equate with the incidental campaign benefits to the county commissioner in Blackburn. In addition, Blackburn's language and discussion regarding lack of notice of proscribed conduct is inapplicable to the Respondent because his requesting and receiving a formal ethics opinion from the Commission regarding representation before State agencies (CEO 85-83) shows that he was aware that he might be crossing ethical boundaries.
Therefore, the Respondent's exception numbered "2" is rejected.
The Respondent takes exception to all of Section D (the portion of the Recommended Order which discusses the issue of penalties against the Respondent) of the Recommended Order, arguing that since the Commission has no authority to seek punishment of a member of the Legislature, penalty comments in the Recommended Order should be rejected by the Commission.
To the extent that the issues here involve Article II, Section 8(e), Florida Constitution, the Commission has the authority under Article II, Section 8(f), Florida Constitution, to investigate and render a public report that includes conclusions of law regarding whether a violation has been committed.
That public report is not binding on the Legislature; nor does it commence official action for discipline or seek to punish a member of the Legislature.
Florida Commission on Ethics v. Plante, 389 So.2d 332, at p. 337 (Fla. 1979). Therefore, the Commission does not have the authority under the Constitution to recommend a penalty for a violation of the Constitutional prohibition here.
Violations of the Code of Ethics are penalized in accordance with the procedures specified in Section 112.324, Florida Statutes. Section 112.324(3) provides that when the Commission finds that a member of the Legislature has committed a violation, the Commission shall forward its findings to the President or Speaker, as appropriate, for referral to committee for investigation and action. That subsection specifically states: "Upon request of the committee, the commission shall submit a recommendation as to what penalty, if any, should be imposed." Therefore, the Commission is not empowered to recommend a penalty for any statutory violation at this stage of its proceedings.
Accordingly, as any penalty discussion is at least premature, the Respondent's exception or objection numbered "3" is accepted.
The Respondent takes exception to the Recommended Order, arguing "that it fails to adequately address the significant issue of cases of this nature being based upon circumstantial evidence and the associated necessity of determining that all reasonable hypotheses contrary to the Findings of Fact and Conclusions of Law must be dispelled," and arguing further that, "[t]here is no competent substantial evidence which directly demonstrates Mr. Langton actually said he was making contact with DCA personnel on behalf of his firm or its clients or that he specifically requested any action be taken as to those entities."
There is no requirement that it be proven that a Respondent actually made a conclusory statement admitting that he engaged in activity which could form the evidential basis of certain elements of ethics offenses. Elements of offenses can be proven by the totality of the evidence as weighed and interpreted by the Hearing Officer. All of the findings of fact contained in the Recommended Order which deal with elements of the offenses are based upon competent, substantial evidence. In addition, there is no requirement that the Recommended Order engage in an exhaustive discussion of circumstantial evidence.
Therefore, the Respondent's exception numbered "4" is rejected.
The Respondent takes exception to the Recommended Order "for its failure to adequately address the crucial issue of the standard of proof that must be met in proceedings before the Commission on Ethics."
Since the Hearing Officer determined that the evidence met both the "preponderance of the evidence" standard and the "clear and convincing evidence" standard, it is not necessary for the Commission to determine which standard applies. Further, since the Commission's action in this matter can constitute only a public report and not the imposition of an actual penalty or punitive sanction, and since any disciplinary action by the Legislature against the Respondent following such a public report would not consist of the Respondent's loss of a professional license, the preponderance of the evidence standard, which has been used in all previous matters before the Commission, is the proper standard of proof.
Therefore, the Respondent's exception numbered "5" is rejected.
The Respondent apparently takes exception to the Hearing Officer's not considering and not basing findings of fact on Advocate's Exhibit 18B (the sworn statement of Wanda Jones given to an assistant state attorney), after it was admitted into evidence by stipulation of the parties, due to the exhibit being hearsay not within any exception to the hearsay rule.
While hearsay evidence is admissible in proceedings under Chapter 120, Florida Statutes, findings of fact cannot be supported by hearsay alone. See Section 120.58(1)(a), Florida Statutes. Further, in his Recommended Order, the Hearing Officer does not state that he did not consider the exhibit; his order provides only that "Advocate's exhibits 18A and 18B are hearsay not subject to any exception to the hearsay rule. No findings of fact have been based upon these exhibits."
Therefore, Respondent's exception numbered "8" is rejected.
The Respondent takes exception to the Hearing Officer's reference to a telephone call between the Respondent and Mr. Parmer, pointing out that the reference appears to be an inadvertent error wherein the Hearing Officer intended to refer to the telephone call from the Respondent to Mr. Yeatman.
Since the Advocate for the Commission agrees with the Respondent's representation of this misstatement by the Hearing Officer, the matter does not appear to be in controversy. Therefore, this exception is granted and the references to the "Parmer call" on pages 46, 47, and 49 of the Recommended Order are hereby corrected to refer to the telephone call between the Respondent and Mr. Yeatman.
The Respondent takes exception to all findings of fact and conclusions of law which hold that the purpose of the Respondent's contacts with the DCA was the furtherance of his business interests, arguing that the conclusions and findings are based upon Advocate's Exhibit Number 4 which, the Respondent argues further, was admitted into evidence by the Hearing Officer over his objection that the exhibit contained opinions and conclusions which infringed upon the province of the Hearing Officer.
This exception is rejected because the findings of fact to which the Respondent takes exception are all based upon competent, substantial evidence.
Since the Respondent did not separate or particularly identify his exceptions as being directed to findings of fact, versus conclusions of law, it has been difficult to apply the standards of review provided in Chapter 120, Florida Statutes, to the Respondent's exceptions. Recognizing that the Recommended Order also may contain findings of fact that are designated under conclusions of law, however, it is the Commission's determination that, except as otherwise expressly stated in this Final Order and Public Report, there is competent, substantial evidence for the Hearing Officer's findings of fact and that the Hearing Officer's conclusions of law reflect a proper understanding and application of the Constitutional and statutory provisions involved.
Findings of Fact
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
Conclusions of Law
The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.
Accordingly, the Commission on Ethics finds that the Respondent, Michael E. Langton, as a State Representative, violated Section 8(e), Article II, Constitution of the State of Florida, and Sections 112.3141(1)(c) and 112.313(6), Florida Statutes, as described herein.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, January 24, 1992.
January 28, 1992 Date
Dean Bunch Chairman
COPIES FURNISHED:
Mr. Mark Herron and Mr. Jeffrey H. Barker, Attorneys for Respondent
Ms. Virlindia Doss, Commission Advocate
Mr. Paul D. Harvill, Complainant Division of Administrative Hearings
NOTICE OF RIGHT TO JUDICIAL REVIEW
YOU ARE NOTIFIED THAT YOU ARE ENTITLED, PURSUANT TO SECTION 120.88, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Jan. 29, 1992 | Final Order and Public Report filed. |
| Nov. 27, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 10/1/91. |
| Nov. 05, 1991 | Respondent`s Proposed Recommended Order filed. |
| Nov. 05, 1991 | Notice of Filing w/Proposed Recommended Order filed. (From Virlindia Doss) |
| Nov. 04, 1991 | (Corrected) Page 258 filed. (From Jane Faurot) |
| Oct. 17, 1991 | Deposition of Earl H. Parmer, Jr. filed. |
| Oct. 16, 1991 | Transcript (Volumes 1-3) filed. |
| Oct. 04, 1991 | (Respondent) Notice of Taking Deposition filed. (From Jeffrey H. Barker) |
| Oct. 04, 1991 | (Respondent) Notice of Taking Deposition filed. (From Jeffrey H. Barker) |
| Oct. 01, 1991 | Order Concerning Motion to Allow Taking and Submission of Post Final Hearing Deposition and Denying Motion in Limine sent out. |
| Sep. 30, 1991 | CASE STATUS: Hearing Held. |
| Sep. 30, 1991 | Subpoena Ad Testificandum (5) filed. (From Jeffrey H. Barker) |
| Sep. 27, 1991 | Depositions of Mario Taylor, Linda Frohock, Thomas Pelham, Lewis Burnside, Jr., Carol Schwarz, Michael Richardson, Michael Langton and Wanda A. Jones filed. |
| Sep. 25, 1991 | (Respondent) Prehearing Filing; Motion in Limine; Motion to Allow Taking and Submission of Post Final Hearing Deposition filed. |
| Sep. 25, 1991 | Prehearing Statement w/Advocate`s Witness List filed. (From Virlindia Doss) |
| Sep. 25, 1991 | CC Deposition of Michael Langton w/Notice of Filing filed. (From Virlindia Doss) |
| Sep. 10, 1991 | Subpoena Ad Testificandum filed. (From Jeffrey H. Barker) |
| Sep. 03, 1991 | Notice of Taking Depositions filed. (from J. Barker) |
| Sep. 03, 1991 | (6) Subpoena Ad Testificandum filed. (from J. Barker) |
| Aug. 22, 1991 | Response to Order Compelling Discovery filed. (from Virlindia Doss) |
| Aug. 22, 1991 | Notice of Taking Deposition filed. (from Jeffrey H. Barker) |
| Aug. 21, 1991 | Notice of Taking Deposition filed. (From Virlindia Doss) |
| Aug. 05, 1991 | Order Granting Motion to Compel Discovery sent out. |
| Aug. 05, 1991 | Order Denying Amended Motion to Dismiss Order Finding Probable Cause sent out. |
| Jul. 25, 1991 | Response to Supplemental Argument to Amended Motion to Dismiss and Response to Motion to Compel Discovery w/Exhibits A&B filed. (From Virlindia Doss) |
| Jul. 17, 1991 | (Respondent) Motion to Compel Discovery filed. (From Mark Herron) |
| Jul. 15, 1991 | Supplemental Argument to Amended Motion to Dismiss filed. |
| Jul. 11, 1991 | Answers to Respondent`s Interrogatories filed. (From Virlindia Doss) |
| Jul. 02, 1991 | Reply to Advocate`s Response to Amended Motion to Dismiss Order Finding Probable Cause filed. |
| Jun. 20, 1991 | Advocate`s Response to Amended Motion to Dismiss Order Finding Probable Cause filed. (From Virlindia Doss) |
| Jun. 14, 1991 | (Respondent) Amended Motion to Dismiss Order Finding Probable Cause filed. (From Jeffrey H. Barker) |
| Jun. 11, 1991 | (Respondent) Notice of Service of Interrogatories; Motion to Dismiss Order Finding Probable Cause filed. (From Mark Herron) |
| Jun. 11, 1991 | Notice of Hearing sent out. (hearing set for Sept. 30, 1991, Oct. 1,1991, & Oct. 2, 1991; 9:00am; Tallahassee). |
| Jun. 11, 1991 | Order of Prehearing Instructions sent out. |
| Jun. 07, 1991 | Joint Response to Initial Order filed. (From V. A. Doss & Mark Herron) |
| May 31, 1991 | Notice of Assignment and Order sent out. |
| May 29, 1991 | Agency Referral Letter; Order Finding Probable Cause; Determination of Investigative Jurisdiction and Order to Investigate; Complaint; Report of Investigation; Advocate`s Recommendation filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 28, 1992 | Agency Final Order | |
| Nov. 27, 1991 | Recommended Order | Legislator violated ethics code and Florida Constitution by representing his business before Department of Community Affairs. |
CLARK, ROUMELIS AND ASSOCIATES, INC. vs DEPARTMENT OF COMMUNITY AFFAIRS, 91-003367EC (1991)
RELIANCE-ANDREWS ASSOCIATES, LTD. vs FLORIDA HOUSING FINANCE CORPORATION, 91-003367EC (1991)
CAPITAL GROVE LIMITED PARTNERSHIP vs FLORIDA HOUSING FINANCE CORPORATION, 91-003367EC (1991)
CITY OF SEBRING vs. DEPARTMENT OF COMMUNITY AFFAIRS, 91-003367EC (1991)
FLORIDA FARMWORKER`S COUNCIL, INC. vs. DEPARTMENT OF COMMUNITY AFFAIRS, 91-003367EC (1991)
